Madras High Court
The Chief Educational Officer vs S.Christy on 2 April, 2014
Bench: V.Ramasubramanian, V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02.04.2014 CORAM THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN and THE HONOURABLE MS.JUSTICE V.M.VELUMANI Writ Appeal (MD)No.463 of 2014 and M.P.(MD)No.1 of 2014 1.The Chief Educational Officer, Kanyakumari District at Nagercoil, Kanyakuamri District-629 001.' 2.The District Educational Officer, Kuzhithurai at Marthandam, Kanyakumari District. ... Appellants/Respondents 1&2 Vs. 1.S.Christy ... Respondent-1/ Petitioner 2.The Manager, Concordia High and Higher Secondary Schools, Lutheran Primary and Middle Schools, MELIM Primary Schools, Lutheran Centre, Nagercoil, Kanyakumari District. 3.The Correspondent, Concordia Higher Secondary School, Pootteti, Theruvukadai Post, Kanyakumari District-629 157. ... Respondents 2 & 3/Respondents 3&4 Writ Appeal under Clause 15 of the Letters Patent against the order of the learned Single Judge, dated 25.07.2011, made in W.P.(MD)No.3772 of 2008. !For Appellants : Mr.V.R.Shanmuganathan, Spl.Govt.Pleader. ^For Respondent-1: Mr.Isaac Mohanlal For Respondents : Mr.C.K.M.Appaji 2 and 3 :ORDER
(Order of the Court was made by V.RAMASUBRAMANIAN,J) This is an appeal filed by the State Educational Authorities, challenging an order passed by the learned Judge, allowing the writ petition of the 1st respondent herein for the approval of her appointment in the 2nd respondent school, as a Post-Graduate Assistant (Chemistry).
2.Heard Mr.V.R.Shanmuganahan, learned Special Government pleader for the appellants, Mr.Isaac Mohanlal, learned counsel for the 1st respondent and Mr.C.K.M.Appaji, learned counsel for the respondents 2 and 3.
3.The 1st respondent filed a writ petition in W.P.(MD)No.3722 of 2008 contending inter alia that she was appointed as a Post-Graduate Assistant in Chemistry on 20.12.2006; that her appointment was in a vacancy caused due to the voluntary retirement of the existing incumbent, by name T.Annie Nirmala, on 28.06.2006; that her appointment was made after the issue of staff fixation was settled for the academic year and that despite repeated representations, the appellants herein did not grant approval for her appointment and did not disburse her salary. The prayer of the 1st respondent herein in her writ petition was for the issue of a writ of mandamus to direct the appellants herein to approve her appointment with effect from 20.12.2006 and for the grant of all consequential benefits.
4.The appellants filed a counter affidavit contending that though the appointment of the 1st respondent was against a vacancy created due to the voluntary retirement of the existing incumbent, the respondents 2 and 3 failed to apply for prior permission before appointment. According to the appellants, the Correspondent of the School sent the proposal for permission to appoint the 1st respondent only on 25.09.2007. Thereafter, permission was granted on 06.12.2007 and the same was communicated to the School on 31.12.2007. Therefore, it was contended by the appellants in their counter affidavit that the approval for the appointment of the 1st respondent could not be granted, since the appointment was made without prior permission.
5.By an order dated 25.07.2001, the learned Judge allowed the writ petition filed by the 1st respondent on the sole ground that Rule 15 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1974 is in pari materia with Rule 11 of the Tamil Nadu Private Colleges (Regulation) Rules, 1976. The said Rule was interpreted by a Division Bench of this Court in W.A.Nos.93 and 94 of 2008, by a judgment dated 06.01.2010, to the effect that for filling-up a sanctioned post, no prior approval is necessary. Aggrieved by the said decision, the Chief Educational Officer and the District Educational Officer are on appeal before us.
6.The primary grounds on which the State Educational Authorities challenge the order of the learned Judge are (i) that Rule 15 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 is not actually in pari materia with Rule 11 of the Tamil Nadu Private Colleges (Regulation) Rules, 1976; and (ii) that the learned Judge had failed to take note of the distinction between the minority educational institutions and the non- minority educational institutions.
7.For the purpose of easy appreciation, relevant portions of Rule 15 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 and Rule 11 of the Tamil Nadu Private Colleges (Regulation) Rules, 1976 are presented in the form of a tabular statement, so that the question whether they are in pari materia can be clear, at a glance.
Rule 15 of T.N.Recognised Private Schools (Regulation) Rules, 1974 Rule 11 of the Tamil Nadu Pvt.Colleges (Regulation) Rules, 1976 Qualifications, conditions of service of teachers and other persons Conditions of service, etc., of teachers and others persons in college. 15(4)(ii)Appointments to the various categories of teachers shall be made by following methods:-
(i)Promotion from among the qualified teachers in the school.
(ii)If no qualified and suitable candidate is available by method (i) above,--
(a) Appointment of other persons employed in that school, provided they are fully qualified to hold the post of teachers.
(b) Appointment of teachers from any other school.
(c) Direct Recruitment.
11(3)In the case of regular vacancies, a fully qualified candidate shall be appointed only on a regular basis. However, in a temporary vacancy arising on account of leave, deputation for training or suspension, etc., a qualified candidate may be appointed temporarily for a specified period provided that such teachers' services shall not be terminated before the expiry of the said period.
(4)(i) Promotions in respect of teaching staff shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal, and in respect of non-teaching staff promotions shall be made on seniority basis, provided other conditions regarding qualification are satisfied.
In the case of appointment from any other school or by direct recruitment, the School Committee shall obtain the prior permission of the District Educational Officer in respect of Pre-primary and Middle School and that of the Chief Educational Officer in respect of High Schools and Higher Secondary Schools, Teacher's Training Institutions setting out the reasons for such appointment. In respect of corporate body running more than one school, the schools under that body shall be treated as one unit for purpose of this rule.
The Committee shall fill up the posts by promotion or by direct recruitment. The Committee shall, while making promotion, consider the claims of all the qualified teachers in that college. If, however, none of the qualified teachers in the college is found suitable for promotion, the vacancy shall be filled up by direct recruitment by calling for applications from qualified persons through the Press or by calling for a list of candidates from the Employment Exchange by following the rule of reservation ordered by the Government from time to time for direct recruitment. Explanation.--For purposes of this rule, if an educational agency has established and administered more than one college, then, the colleges under the control of the educational agency shall be treated as one unit.
8.It could be seen from Rule 11(3) & (4) of the Tamil Nadu Private Colleges (Regulation) Rules 1976 that there is no stipulation for obtaining prior permission before making an appointment in a College. But, even a cursory reading of the second paragraph under Rule 15(4) of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 shows that there is a specific requirement for the School Committee to obtain prior permission of the Chief/District Educational Officer. Therefore, the comparison drawn by the learned Judge between the two Rules is not correct and the Rules are actually not in pari materia. Consequently, the decision rendered in W.A.Nos.93 and 94 of 2008, dated 06.01.2010, on the interpretation of Rule 11 of the Tamil Nadu Private Colleges (Regulation) Rules, 1976 has no application to the appointment in Schools. Therefore, to the extent that the order of the learned Judge is solely based upon the Rule 11 of the Tamil Nadu Private Colleges (Regulation) Rules 1976 and the decision of the Division Bench arising out of Rule 11 of the said Rules, it cannot be approved.
9.But, the ultimate conclusion reached by the learned Judge to direct approval to be granted to the appointment of the 1st respondent cannot be interfered with, for a different reason. The School in question is a minority educational institution. As can be seen from the very Rule 15 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, relied upon by the appellants, it has no application to minority schools. Therefore, despite the fact that the reasoning contained in the order of the learned Judge is not correct, the conclusion arrived by him is in accordance with law. Therefore, after pointing out that Rule 15 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 stands on a different footing from Rule 11 of the Tamil Nadu Private Colleges (Regulation) Rules, 1975 and that prior permission is necessary in terms of Rule 15 of the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974, atleast for non- minority institutions, the writ appeal is liable to be dismissed. However, we wish to clarify that even minority institutions will have to take post- facto approval and that any appointment even in minority institutions would depend only upon the fixation of staff strength by the Educational Authorities.
10.With the above observations, the writ appeal is dismissed. No costs. Connected M.P.(MD)No.1 of 2014 is also dismissed.
To
1.The Chief Educational Officer, Kanyakumari District at Nagercoil, Kanyakuamri District-629 001.'
2.The District Educational Officer, Kuzhithurai at Marthandam, Kanyakumari District.